Re: Confidentiality, under section
161.254 of the Health and Safety Code,
of reports of tobacco ingredients
submitted to the Texas Department of
Health

(ORQ-31)

Dear Commissioner Archer:

You ask about the confidentiality of information to be submitted to the Texas Department
of Health (the "department") under section 161.252 of the Texas Health and Safety Code
regarding the ingredients in tobacco products. We are responding to your inquiry in the form
of an open records decision.

Chapter 161, Subchapter N (Disclosure of Ingredients in Cigarettes and Tobacco Products),
of the Texas Health and Safety Code requires tobacco manufacturers to report annually to
the department the identity of each ingredient in a cigarette or tobacco product (other than
tobacco, water, or reconstituted tobacco sheet made wholly from tobacco) listed in
descending order according to weight, measure or numerical count, as well as nicotine yield
ratings established under section 161.253. Id. § 161.252(a).(1) The department is to provide
by rule for the form and the time for filing of such reports. Id. § 161.252(c).(2)

Section 161.254 provides:

(a) Except as provided by Subsections (b), (c), and (d), information included
in a report filed under this subchapter is public information and is not
confidential unless it is determined to be confidential under this section.

(b) The department may not disclose information under Subsection (a) until
the department has obtained the advice of the attorney general under this
section with respect to the particular information to be disclosed. If the
attorney general determines that the disclosure of particular information
would constitute an unconstitutional taking of property, the information is
confidential and the department shall exclude that information from
disclosure.

(c) Information included in a report filed under this subchapter is
confidential if the department determines that there is no reasonable scientific
basis for concluding that the availability of the information could reduce risks
to public health.

(d) Information included in a report filed under this subchapter is
confidential under chapter 552, Government Code, if the information would
be excepted from public disclosure as a trade secret under state or federal
law. (Emphasis added.)

The department has, to date, not advised this office that it has established a date for reporting
or received any reports. But you ask, with respect to the provisions of subsection (b), whether
disclosure of the ingredients included in the reports will constitute an unconstitutional taking.
You suggest that ingredients reported to the department but not otherwise made public by
the manufacturer should be considered "trade secrets" such that their disclosure by the
department would amount to an unconstitutional taking under subsection (b), supra. In our
opinion, this office's determination as to whether disclosure of a particular report's contents
would constitute an unconstitutional taking will require analyzing the submitted report itself.

Should there be a request for disclosure of the reports once they have been submitted to the
department, this office will, if necessary, determine at that time whether disclosure of the
particular information at issue would constitute an "unconstitutional taking" under section
161.254(b). A determination under section 161.254(b) would include, but perhaps not be
limited to, determining whether there has been a prima facie case made for the information's
trade secret status. Such analysis by this office would follow the rule of Hyde Corp. v.
Huffines, 314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958), which relies upon the
definition of trade secrets contained in the Restatement of Torts, section 757.(3)Cf. Gov't
Code § 552.110 (trade secret and confidential commercial or financial information excepted
from disclosure under Texas Public Information Act). See also, e.g.,Philip Morris, Inc. v.
Harshbarger, 159 F.3d 670 (1st Cir. 1998) (analysis of law of unconstitutional taking;
finding that regulatory disclosure of tobacco ingredient trade secret information without
adequate compensation would be unconstitutional taking).

You also ask about the other exceptions to disclosure set out in section 161.254. Subsection
(c) of section 161.254 provides an alternative basis for the department's withholding
information in the reports. It makes information in reports confidential "if the department
determines that there is no reasonable, scientific basis for concluding that the availability of
the information could reduce the risks to public health." Thus, should the department receive
a request for report information and determine that "there is no reasonable, scientific basis
for concluding that the availability of the information could reduce the risks to public
health," it may withhold the requested information without seeking the determination of this
office.

Subsection (d) of section 161.254 makes report information confidential under the Texas
Public Information Act (the "TPIA") if the information would be excepted from public
disclosure as a trade secret under state or federal law. You ask whether the following two
federal statutes, in conjunction with subsection (d), make ingredient information reported to
the department under chapter 161 confidential: (1) the Federal Cigarette Labeling and
Advertising Act(4) (the "FCLAA"), as amended by the Comprehensive Smoking Education
Act (the "CSEA"); and (2) the Comprehensive Smokeless Tobacco Health Education Act of
1986(5) (the "Smokeless Tobacco Act.")

The FCLAA, as amended by the CSEA, mandates warning notices on each package of
cigarettes and in each advertisement of cigarettes to inform the public about possible adverse
health effects of cigarette smoking and requires manufacturers to "annually provide the
Secretary [of Health and Human Services] with a list of the ingredients added to tobacco in
the manufacture of cigarettes."(6) (Emphasis added.)

Section 1335a(b)(2)(A) of the FCLAA specifically provides:

Any information provided to the Secretary under subsection (a) of this section
shall be treated as a trade secret or confidential information subject to
section 552(b)(4) of Title 5 [providing a trade secret exemption for disclosure
under the Freedom of Information Act] and section 1905 of Title 18
[criminalizing disclosure of confidential information by federal officers or
employees] and shall not be revealed, except as provided in paragraph (1)
[respecting the Secretary's report to Congress], to any person other than those
authorized by the Secretary in carrying out their official duties under this
section.(7) (Emphasis added.)

The Smokeless Tobacco Act bans the advertising of smokeless tobacco on radio and
television and establishes a rotating warning requirement for package labels and advertising,
with specific warnings regarding the potential adverse health effects of smokeless tobacco
products.(8) Like the FCLAA, the Smokeless Tobacco Act provides for anonymous and
aggregate ingredient reporting to the Secretary of Health and Human Services, and
additionally requires smokeless tobacco manufacturers to specify the nicotine quantity
contained in each product.(9)

Any information provided to the Secretary under subsection (a) of this section
shall be treated as a trade secret or confidential information subject to
section 552(b)(4) of Title 5 [providing a trade secret exemption for disclosure
under the Freedom of Information Act], and shall not be revealed, except
provided in paragraph (1), to any person other than those authorized by the
Secretary in carrying out their official duties under this section.(10) (Emphasis
added.)

The specific information afforded trade secret protection under these federal laws is a list of
the ingredients added to tobacco in the manufacture of cigarettes or smokeless tobacco
products, and, in the case of smokeless tobacco products, the nicotine quantity. In our
opinion, it was the intent of the legislature in adopting subsection (d) of section 161.254, that
the information excepted from public disclosure as a trade secret under the federal FCLAA
and the Smokeless Tobacco Act would also be confidential when reported to the department
under chapter 161, Subchapter N, and thus not subject to public disclosure for purposes of
a request for information under the TPIA.

If it had not been the intent of subsection (d) to make the federal FCLAA and Smokeless
Tobacco Act non-disclosure provisions applicable to information reported to the department
under chapter 161, then the provision would be superfluous since, as we will discuss below,
it would only provide the same or less protection for the information than that already
afforded by subsection (b). First, we are aware of no other federal statutory provisions which
would apply to the report information. And, to the extent it exists, the common law of
federal trade secrets is more restrictive in its protection than Texas law, which latter, as noted
above, utilizes the standards set out in the Restatement. See, e.g, Public Citizen Health
Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983) (defining "trade secret" for
purposes of federal Freedom of Information Act exemption 4 as "a secret, commercially
valuable plan, formula, process, or device that is used for making, preparing, compounding,
or processing of trade commodities and that can be said to be the end product of either
innovation or substantial effort," and rejecting broader Restatement analysis). Thus, any
protection of federal law under subsection (d) for the ingredient information reported to the
department, would be less than that afforded by state law under the subsection, since the test
for whether the information was protected by state law under subsection (d) would, in effect,
be whether the information was within the Restatement definition. Moreover, as noted
above, the Restatement definition of "trade secret" would also be the principal test applied
in a determination by this office under subsection (b) of section 161.254 as to whether
disclosure of ingredient information reported to the department would be an
"unconstitutional taking." Thus the protection of subsection (d), would only be the same or
less than that already afforded by subsection (b). We do not believe the legislature, in adding
subsection (d), would have intended that it only be redundant of subsection (b).(11)

Please note, however, that the referenced federal provisions protect from disclosure only the
identity of those ingredients "added to" tobacco in the manufacturing process. The
department, by rule, has defined "ingredient" as

[a]ny ingredient, substance, chemical or compound other than tobacco, water
or reconstituted tobacco sheet made wholly from tobacco, which is present
in the product including but not limited to, flavorants, processing aides,
casing sauces, contaminants, combustion modifiers, and packing materials,
to the full extent the manufacturer is aware of the presence of any such
ingredient. (Emphasis added.)

25 T.A.C. § 101.2(7). Thus, if it happens that an ingredient is present in the tobacco product
as a result of something other than being added in the manufacturing process, it would not
be exempt from disclosure by virtue of the federal provisions discussed above.

Similarly, since the section 161.252 reports are required for "tobacco products" generally,
while the cited federal provisions apply only to cigarettes and smokeless tobacco, there may
be reports listing ingredients in tobacco products which are neither cigarettes nor smokeless
tobacco which would not be exempt from disclosure by virtue of these federal provisions.

In any case, should the department receive a request for report information which it
determines is treated as a trade secret under the federal provisions discussed above, it may
consider this decision a "previous determination" for purposes of the Texas Public
Information Act, chapter 552 of the Government Code, and withhold the information without
seeking an additional determination from this office. See id. § 552.301(a) (if governmental
body receives request for information it wishes to withhold, it must seek determination of
attorney general unless attorney general has made previous determination with respect to
such information).

In this connection, we note that the exception to disclosure of report information set out in
subsection (b) of section 161.254, discussed above, requiring an attorney general
determination as to whether disclosure of report information would constitute an
unconstitutional taking, does not itself reference the TPIA. We believe, however, that since
the legislature has not provided any other mechanism for the department's obtaining the
determination of the attorney general under section 161.254(b), that the latter provisions
should be read together with those in the TPIA where there is a public request for report
information. Therefore, if the department receives a public request for report information
which requires obtaining the attorney general's determination that disclosure of the
information would not constitute an unconstitutional taking, the department should seek that
determination under the procedures set out in the TPIA. See id. section 552.301
(governmental body must, within ten business days of receiving written request, seek
attorney general's permission to withhold requested information, and submit copies of the
request and the information at issue).

To summarize, if the department receives a public request for report information, it should
1) withhold the information if it determines under subsection (c) of section 161.254 that
disclosure would not reduce the risks to public health; 2) withhold the information pursuant
to subsection (d) of section 161.254 if it determines that the information is treated as a trade
secret by the above-referenced federal provisions and thus subject to our "previous
determination" authority for purposes of the TPIA, as discussed above; or 3) seek the
determination of this office, under the procedures set out in the TPIA, as to whether the
disclosure of the information would constitute an unconstitutional taking under subsection
(b) of section 161.254, or whether the information is treated as a trade secret under state or
federal laws, other than those discussed above, pursuant to subsection (d) of the section.

S U M M A R Y

Reports of tobacco ingredients to the Texas Department of Health under section 161.252 of
the Health and Safety Code may not be disclosed if the attorney general determines that
disclosure would constitute an "unconstitutional taking" under section 161.254(b), if the
department determines that disclosure would not reduce risks to public health under section
161.254(c), or if the attorney general determines that the information is treated as a trade
secret under state or federal law, pursuant to section 161.254(d).

The attorney general cannot make the determination required by section 161.254(b), as to
whether disclosure would constitute an unconstitutional taking, without reviewing the
specific information submitted to the department. In requesting the attorney general's
determination under subsections (b) and (d) of section 161.254, the department should use
the procedures set out in the Texas Public Information Act. The department need not seek
a decision of the attorney general in order to withhold report information under subsection
(c) of section 161.254.

With respect to section 161.254(d), this decision serves as the attorney general's previous
determination for purposes of the Texas Public Information Act that information treated as
a trade secret under the Federal Cigarette Labeling and Advertising Act as amended by the
Comprehensive Smoking Education Act of 1984, and the Comprehensive Smokeless
Tobacco Health Education Act of 1986, must be withheld from disclosure.

Yours very truly,

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

REBECCA L. PAYNE
Chief, Open Records Division

William Walker
Assistant Attorney General - Open Records Division

Footnotes

1. Subsection (b) of section 161.252 provides that manufacturers are not required to disclose ingredients the United States Food and Drug Administration has approved as safe when burned and inhaled.

3. According to the Restatement, a trade secret is any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.

Restatement of Torts § 757 cmt. b (1939). Additionally, the Restatement provides six factors to be considered in determining whether particular information constitutes a trade secret:
(1) the extent to which the information is known outside of [the] business;
(2) the extent to which it is known by employees and others involved in [the] business;
(3) the extent of measures taken to guard the secrecy of the information;
(4) the value of the information to [the company] and [its] competitors;
(5) the amount of effort or money expended . . . in developing the information; and
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.